HIGHLIGHTS:

The new Illinois TRUST Act limits state and local government
officials from 1) complying with immigration detainer requests, or
2) stopping, arresting, searching or detaining an individual solely
based on immigration status.

Illinois local governments should review their internal
policies and practices in order to ensure compliance with the
Act.

Local governments should also consider potential conflicts
between the Act and federal policies concerning
"sanctuary" jurisdictions.

On Aug. 28, 2017, Gov. Bruce Rauner signed into law Senate Bill 31, a statewide sanctuary
jurisdiction bill titled the Illinois TRUST Act (Act).1
The Act, which takes immediate effect, will require Illinois local
governments to update their internal policies and practices in
order to ensure compliance with the Act. In so doing, local
governments will also need to make risk-based determinations
regarding potential conflicts between the Act and the Trump
Administration's recent policy developments, statements, and
lawsuits related to "sanctuary" jurisdictions. Notably,
the Act does not preempt home rule and thus home rule governments
retain the authority to adopt ordinances that may not be consistent
with the Act.

The Act, among other things, limits state and local government
officials from 1) complying with immigration detainer requests, and
2) stopping, arresting, searching or detaining an individual solely
based on immigration status. However, the Act also includes a
statement of legislative purpose that "This Act shall not be
construed to prohibit or restrict any entity from sending to, or
receiving from, the United States Department of Homeland Security
or other federal, State, or local government entity information
regarding the citizenship or immigration status of any individual
under Sections 1373 and 1644 of Title 8 of the United States
Code." The statement also provides that "nothing in this
Act shall prevent a law enforcement officer from contacting another
law enforcement agency for the purposes of clarifying or confirming
the nature and status of possible offenses in a record provided by
the National Crime Information Center, or detaining someone based
on a notification in the Law Enforcement Agencies Data
Administrative System unless it is clear that request is based on a
non-judicial immigration warrant."

8 U.S.C. Section 1373 is one of the central authorities cited in
the debate on whether sanctuary policies violate federal law.
Specifically, Section 1373 is a federal immigration statute which
states, in relevant part, that states and local governments may not
prohibit, or in any way restrict, the maintenance or sending of
information on immigration status to federal immigration officials.
This language, and its interplay with the new Act, creates
significant ambiguity on the nature and scope of responsibilities
for Illinois local governments.

1. Limitations on Compliance with Immigration Detainer
Requests

Section 15(a) of the Act states that "A law enforcement
agency or law enforcement official shall not detain or continue to
detain any individual solely on the basis of any immigration
detainer or non-judicial immigration warrant or otherwise comply
with an immigration detainer or non-judicial immigration
warrant." In effect, Section 15(a) prevents law enforcement
officials from complying with U.S. Immigration and Customs
Enforcement (ICE) immigration detainer requests that are not
accompanied by a court-issued warrant.

This provision is consistent with recent case law. Notably, in
September 2016, the U.S. District Court for the Northern District
of Illinois ordered ICE to stop its practice of issuing immigration
detainers without probable cause.2 The Court held that
immigration detainers are void if issued in the absence of an
individualized determination by ICE that the subjects are likely to
escape before a warrant can be obtained.3 Further,
courts have increasingly held that holding an individual in
detention past an otherwise-authorized release (e.g., bail)
pursuant to such a detainer constitutes a new arrest and would be a
violation of the Fourth Amendment.4

Importantly for local governments, courts have held, and the
federal government has conceded, that ICE immigration detainer
requests are voluntary.5 Arguably, ICE cannot compel
compliance with detainer requests without running afoul of the
Fourth Amendment or the Tenth Amendment. Further, although ICE may
detain an alien without a warrant for a civil immigration
violation, local government officials cannot because, as recognized
in the Act, "State law does not currently grant State or local
law enforcement the authority to enforce federal civil immigration
laws, it is the intent of the General Assembly that nothing in this
Act shall be construed to authorize any law enforcement agency or
law enforcement official to enforce federal civil immigration
law."6 Finally, Courts have also held that
compliance with detainer requests issued in violation of the Fourth
Amendment could expose local governments to potential civil
damages.7 Accordingly, compliance with the Act will help
protect Illinois local governments from potential liability for
constitutional deprivations and damages.

2. Limitations on Immigration-Status Based Law Enforcement
Activities

Section 15(b) of the Act states that "A law enforcement
agency or law enforcement official shall not stop, arrest, search,
detain, or continue to detain a person solely based on an
individual's citizenship or immigration status." This
provision limits the discretion of law enforcement officers when
attempting to stop aliens without additional evidence of potential
criminal activity.8

3. Scope of Section 15 Prohibitions

Section 15(c) states that "Section 15 does not apply if a
law enforcement agency or law enforcement official is presented
with a valid, enforceable federal warrant. Nothing in this Section
15 prohibits communication between federal agencies or officials
and law enforcement agencies or officials."

4. Immunity

Section 15(d) states that "A law enforcement agency or law
enforcement official acting in good faith in compliance with this
Section who releases a person subject to an immigration detainer or
non-judicial immigration warrant shall have immunity from any civil
or criminal liability that might otherwise occur as a result of
making the release, with the exception of willful or wanton
misconduct."

5. Law Enforcement Training Requirement

Section 20 states that "By January 1, 2018, every law
enforcement agency shall provide guidance to its law enforcement
officials on compliance with Section 15 of this Act."

6. Home Rule Considerations

There is no express provision of the Act that refers to or
limits the authority of a home rule unit of government with respect
to immigration-related law enforcement activities. Home rule units
can thus consider adopting policies or local ordinances that are
not consistent with the Act, provided that any local initiative is
truly limited to local government and affairs (and thus remaining
within the general ambit of home rule authority).

The Act is significant and its implementation and enforcement
may be complicated.

5 Office of the Inspector General, Department of Justice Referral of Allegations of
Potential Violations of 8 U.S.C. Sec 1373 by Grant Recipients,
U.S. Department of Justice, 4-6 (Sept. 23, 2016). (A legal
determination has been made by the U.S. Department of Homeland
Security (DHS) that civil immigration detainers are voluntary
requests. The ICE officials with whom we spoke stated that since
the detainers are considered to be voluntary, they are not
enforceable against jurisdictions which do not comply Galarza
v. Szalczyk et al, 745 F.3d 634 (3rd Cir. 2014) (noting that
all Courts of Appeals to have considered the character of ICE
detainers refer to them as "requests," and citing
numerous such decisions); and Miranda-Olivares v. Clackamah
County, 2014 1414305 (D. Or. 2014).).

6 Illinois TRUST Act, Section 5. Legislative
Purpose.

7 Morales v. Chadbourne, 793 F.3d 208 (1st Cir.
2015).

8 SeeSturgeon v. Bratton, 95 Cal.
Rptr. 3d 718, 732 (2009).

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